The Petitioner through this Writ Petition claims her right to regularization under provisions of Punjab Regularization of Service Act, 2018 (hereinafter referred to as the "Regularization Act" ).
2. The Petitioner has canvassed her claim that she did her M. Phill in Fine Arts (Art History), Diploma in Tourism and Hotel Management (DTHM) and Chinese Language Course (Basic, HSK-1 & 2) from Punjab Jiangsu Culture Center , Lahore.
3. The Respondent No.4 i.e. Director General Punjab Institute of Language Art & Culture, Punjabi Complex (hereinafter referred to as "PILAC" ) through newspaper advertisement invited applications, inter alia, for the vacant posts of the Programme Coordinator , PJCC, (BS-17). The qualification required for the candidates was Masters Degree from a recognized university alongwith fluency in English & Chinese Language.
4. Since the Petitioner was qualifying, therefore, she applied for the subject matter post and accordingly , after interview was recommended by the Selection Committee for appointment as Programme Coordinator PJCC (BS- 17). She was appointed on contract basis on 23.05.2017. The appointment of the Petitioner was determined for a period of 03 years. Subsequently , upon expiration the contract of the Petitioner was validly approved to be extended for further period of 01 year by the competent authority .
5. The Petitioner through her Applications dated 17.03.2021, 29.03.2021 and 20.04.2021 applied for regularization of her service under the Regularization Act. The learned counsel for the Petitioner argued that the Petitioner admittedly qualifies for the subject matter post and despite clear legal position that she satisfies the criteria determined under the law, she has not been regularized by the Respondents. The learned counsel for the Petitioner has argued that inaction of the Respondents not to regularize the Petitioner tantamount to malafide in law and is violative of her fundamental rights especially a right to dignity , right to livelihood and a right to be treated in accordance with law. Therefore, learned counsel for the Petitioner submits that this Writ Petition be allowed and consequently , the Petitioner be directed to be regularized under the law .
6. Learned Assistant Advocate General while opposing the Writ Petition has submitted that there is only one sanctioned post in accordance with the Regularization Act, and in this regard the lady namely Safoora Bukhari was inducted subsequently through order dated 15.03.2021 passed by this Court, however , learned Assistant Advocate General himself conceded that the said order has been suspended by the learned Division Bench of this Hon'ble Court. Learned Assistnt Advocate General argues that the Petitioner wants to be regularized against the sanctioned post, which is subject matter of the ongoin g ICA and the proceedings in this case may be halted till the outcome of said ICA. He further submitted that the prayer before this Court by the Petitioner is defective because she demands to be regularized from the date of her appointment whereas under the law she cannot be regularized with retrospective effect. It has been further argued on behalf of the Respondents that the Petitioner was also served with a show cause notice and a minor penalty of censure was imposed upon the Petitioner , according to learned counsel, it is one of the important criter ia of Regularization Act, that the performance of a candidate shall be satisfactory . On these submissions the learned Assistant Advocate General has submitted that this Writ Petition merits dismissal.
7. To adjudicate, determine and ascertai n whether the Petitioner can seek declaration in terms of section 42 of Specific Relief Act, 1877, it is imperative that her entitlement under the provisions of Regularization Act be evaluated first. Section 2(c) read with section 2(f) of the Regularization Act defines "contract employees" and "regularization" as under:- "2. Definition.- In this Act, unless the context otherwise requires-
(a) ..........
(b) ..........
(c) "contract employee" means an eligibl e person appointed on contract in a department immediately before the commencement of the Act but does not include a person appointed to a post in a project, programme, project management unit, project management office, time bound (one-time) development activity or as work-charged employee or an employee on daily wages;
(d) ..........
(e) ..........
(f) "regularization" means the appointment of an eligible contract employee on regular basis, with immediate effect, in accordance with the Act; and
(g) ..........
A combined reading and analysis of the definition clauses clearly spells that a contract employee means an eligible person appointed on contract in a department before the commencement of the Regularization Act. Therefore, the petitioner in terms of law squarely falls under this definition. It is an admitted position that the exclusion clauses contained in the remaining portion of the said definition clause do not attract in the case of the Petitioner .
Pursuant to clause 2(f) any person falling under sub-clause 2(c) the regularization is to be effected. The interplay of these two sub-clauses have already been authoritatively interpreted in the case titled "Mst. NABILA NIAZ and others v . SECRET ARY HEAL TH and others" reported as 2020 PLC (C.S.) 675 :- "Besides specifying exclusion, the Section 2(c) defines 'contract employees' as an eligible person appointed, on contract, immediately before commencement of the Act. The words "eligible person" used in this clause seem to refer the eligibility for contract appointment. However , use of this phrase in clause 2 (f) 'refers to eligibility required for the post against which regularization is to be effected. Regularization of such employee, who was eligible to be appointed on contract under relevant law or policy , is to be made through appointment in accordance with this Act.
The Regularization Act of 2018 is applicable to persons who completed three years continuous service, under contract, before or after its commencement."
8. Therefore, the Petitioner is entitled for her consideration being an eligible person qualified to be regularized. If an employee passes the test of definition' s sub-clauses mentioned above, the provisions of Regularization Act envisages satisfaction of another condition, which are contained in section 3 of the Regularization Act as held in judgment referred supra as under:- "Collective reading of both the subsections under Section 3 shows that a person appointed on contract, if completes three years of service, even after commencement of this Act, shall be eligible to be considered for appointment on regular basis if; (i) regular vacancy is available for initial appointment, (ii) he has required qualification for the post, (iii) the contract appointment was not against special pay package, (iv) his performance during the contract period was satisfactory and (v) he did not opt to continue as contract employ ee. Under Section 10, if a contract employee does not opt against regularization within sixty days, he shall be deemed to have opted for regularization."
If an employee qualifies to fall under defin ition clauses as well as section 3, then obviously the competent authority is bound to submit her/his case for regularization in the mode, manner and mechanism contained in section 4 of the Regularization Act.
9. Admittedly , the case of the Petitioner falls under section 4(3), therefore, her case would be considered for regularization by the Scrutiny Committee constituted under section 5 of the Regularization Act, who would submit recommendation to the appointing authority after satisfying the conditions stipulated in section 3(2) of the Regularization Act.
10. The learned Assistant Advocate General has made an effort through arguments referred above to plead that Petitioner 's case do not satisfy the conditions contained in section 3(2) of the Regularization Act. Unfortunately , those contentions lose their strength as the arguments forwarded by the learned Assistant Advocate General represent evasive denial and are neither supported by any document nor substantiated through any material or record. Once, the denial is found to be evasive and bereft of any substantiation obviously same cannot be considered worthy consideration under the applicable provision of law. It is noteworthy that the Respondents through order dated 21.05.2021 were granted an opportunity to submit parawise comments, which they did not avail. In absence thereof, they remain an allegation and cannot be allowed to prejudice the constitutional rights of the Petitioner , which otherwise stand established. In any event the Department or any other interested party would have sufficient opportunity to place on record documents or materials, before the Scrutiny Committee, which may evaluate the legal position and status of the Petitioner in terms of section 5(2) of the Regularization Act.
11. In view of the above, it is declared that Petitioner qualifies to be an eligible contract employee having completed her 03 years and is liable to be considered for regularization. Authority , which appointed the Petitioner is directed to forward her case to the Scrutiny Committee, who shall Act strictly in accordance with law and more specifically under section 5(2) of the Regularization Act. Upon satisfaction thereof, the Scrutiny Committee shall forward its recommendation to the Regularization Committee. This direction shall be complied with within a period of 02 months and till the finalization of the process directed in this as well as paragraph 9 above, the appointment of the Petitioner through contract shall not be terminated.
12. In terms what have been held above, this W rit Petition is allowed .